Towards e-Justice: European and National Experiences

just-access.de/towards-e-justice-european-and-national-experiences/

21 September 2022

Our Legal Intern, Luca Brocca, writes about e-Justice and how technology both improves
and hampers access to justice by investigating legal precedents at both national and EU
level

Technology can increase the efficiency and transparency of the justice system and make it
easier for individuals to access justice. However, it also risks undermining access to justice
for some (e.g., those without the Internet) if it completely replaces traditional processes.

The term ‘e-justice’ encompasses a wide range of initiatives, including the filing of online
lawsuits, the provision of online information (including case law), the use of video hearings
and conferences, and the ability of judges or other decision-makers to access information
electronically. E-justice consists of the use of technology, information, and communications to
improve citizens’ access to justice and effective judicial action involving the resolution of
disputes or the imposition of criminal sanctions.1

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In recent years, the flag of technological innovation has often been waved as a solution to
the many problems plaguing justice administrations. The COVID pandemic has encouraged
the use of IT in court proceedings and the discovery of the benefits associated with it2. E-
filing and integrated e-justice platforms through which data and documents are exchanged,
as well as electronically managed court proceedings, are becoming the standard for case
processing. The administration of justice is thus being converted from paper to digital media.

Information and Communication Technology (ICT) applications are seen as tools that
inherently produce positive results once they are introduced into a justice system. Moreover,
increasing pressure requires that these benefits be exploited. As the European Commission
stated in relation to the public sector as a whole, “The availability of innovative technologies
such as social networks has increased the expectations of citizens in terms of
responsiveness when accessing all kinds of services online. (…) There is clearly a need to
move towards a more open model of design, production and delivery of online services,
taking advantage of the possibility offered by collaboration between citizens, entrepreneurs
and civil society. The combination of new technologies, open specifications, innovative
architectures and the availability of public sector information can deliver greater value to
citizens with fewer resources”3.

Unfortunately, these positive visions are matched by a much less positive reality. In the
judicial system, ICT innovation comprises a complex interplay of technological, institutional,
organizational, and normative components, according to recent study4. It is becoming
apparent that the technological-institutional systems that are developed in the context of e-
justice must not only be technically functional, but also institutionally, organizationally, and
normatively compatible with judicial processes.

This blog post discusses the development of e-Justice in the EU and its Member States with
practical examples of the main tools used so far. It also highlights the problems that have
arisen from the use of e-Justice, particularly in relation to human rights such as the right to a
fair trial. Finally, some solutions for a better implementation of these innovative systems at
the national level are highlighted.

I. The relation between human rights and e-justice

Under Council of Europe law, the European Convention on Human Rights (ECHR) does not
impose specific requirements on e-justice, but the implementation of e-justice initiatives is
subject to the rules on access to a court and the right to a fair trial under Article 6 of the
ECHR5.

A clear example of this is the case of Lawyer Partners a.s. v. Slovakia6, in which the plaintiff,
a limited liability company, sought to file more than 70,000 civil lawsuits to collect debts.
Given the large number of claims, it recorded them on a DVD and sent them to the court with
an explanatory letter. Although domestic law permitted the filing of claims in this manner, the

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court refused to register them on the grounds that it did not have the necessary equipment.
An appeal to the Constitutional Court was dismissed because it had been filed outside the
statutory two-month period.

The European Court of Human Rights (EctHR) noted that the company’s complaints and
supporting documents, if printed, would have filled over 40 million pages. Under these
circumstances, the choice of filing method could not be considered unreasonable. Domestic
law provides for the electronic filing of lawsuits, and the plaintiff company could not be
faulted for availing itself of this option. The court’s refusal to register their actions was a
disproportionate restriction on their right of access to the court.

II. New tools for e-justice

With the help of technological progress and social change through the information and
knowledge society, new tools are emerging in the field of e-justice. However, the judiciary is
often seen as a conservative actor, traditionally highly formalized, with rigid roles for legal
actors. The judiciary has an aura of formality that does not offer many opportunities to take
into account the citizens’ point of view. It is usually a field for legal experts, lawyers,
prosecutors and academics in law. E-justice is an essential part of e-administration in the
judiciary to shape a modern public administration of justice, and openness in public service is
becoming more and more a key concept.

In the age of knowledge society, a public institution dealing with law needs to promote its
judgments, especially through technological channels such as its public website, which may
include some useful tools for searching text documents. Courts and many justice agencies
around the world have some means of accessing judgments, orders, or jurisdictional
declarations so that attorneys and domestic relations staff can read them. In the following
sections of this blog post, the main e-justice tools developed by the EU and its member
states will be analyzed in order to understand the benefits they offer, the problems they can
cause, and some practical solutions.

II.a European e-Justice Portal

The EU’s “electronic one-stop shop in the area of justice,” the European e-Justice Portal7,
currently allows individuals to file cross-border small claims or payment orders electronically,
in accordance with relevant EU secondary legislation. However, that is not the only thing the
Portal can do. In general, it helps people, companies, lawyers and judges find answers to
legal questions.

A German travelling in Spain needs a lawyer. An Italian entrepreneur wants to search the
Hungarian land register. A Finnish judge has a question about the French court system. On
the European e-Justice Portal, answers to all of these queries are available in 23 official EU

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languages. With more than 30,000 pages of content, the portal offers a wealth of information
and links to laws and practises in all EU countries.

In accordance with Regulation (EC) No. 861/20078, the European e-Justice Portal can also
be used to make claims in the European Small Claims Procedure. This procedure aims to
improve and simplify procedures in civil and commercial matters involving claims that do not
exceed €2,000. It is a written procedure – unless the court deems an oral hearing necessary.
It sets deadlines for the parties and the court to expedite the process and applies to both
monetary and non-monetary claims. A court decision issued under this procedure must be
automatically recognised and enforced in another member state.

II.b Evidence by videoconference

The development of videoconferencing and hearings, as described in the portal, can also
help facilitate justice9. For example, the European Supervision Order10 allows EU Member
States to issue surveillance orders releasing suspects or defendants in pre-trial detention for
surveillance in their country of residence. Article 12 (4) provides that telephone and video
conferencing may be used if the issuing Member State is required by national law to hear the
suspect before modifying the surveillance measures or issuing an arrest warrant. The use of
videoconferencing for hearings is also encouraged by other EU instruments, as described
later in this blog post.

The possibility of taking evidence by videoconference has been enthusiastically promoted by

EU Member States and is now legally allowed not only in civil and commercial cases, but
also in criminal cases. In this regard, the Council’s recommendations on cross-border
videoconferencing state:

“Videoconferencing is a useful tool which has great potential not only at national level but
also in particular in cross-border situations involving different Member States and even third
countries. In cross-border cases smooth communication between the judicial authorities of
the Member States is crucial. Videoconferencing is one possible way of simplifying and
encouraging such communication.” 11

When trying to use the tool of videoconferencing, various difficulties may arise. For example,
there is the problem of finding the right contact point in another Member State, the language
problems among the judicial officers organising the videoconference, or the lack of the same
technical standards in all Member States. An important source of secondary EU law on this
issue is regulation 1206/200112, which was recently replaced by regulation 2020/178313.

Regulation 1206 does not define “videoconference” or “teleconference.” Both qualify as

“communications technology”, but Regulation 1206 does not mention other types of
technologies. However, as we know, there are several messaging applications, such as
Whatsapp or other applications that also offer video calls: Skype, for example, offers

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teleconferencing services with good sound and picture quality. The most appropriate
interpretation of Regulation 1206 is that it provides flexibility to ensure an efficient taking of
evidence regardless of the means.

The requirements for taking evidence by videoconference or similar technology include

certainty about the identity of the persons involved in the taking of evidence, interaction
between them, and the preservation of the rights of the parties, which is ensured by the
presence of a judge.

In order to facilitate cooperation between judicial authorities in different EU countries and to

make full use of videoconferencing for taking evidence in another EU country, the European
Judicial Network in Civil and Commercial Matters (EJN civil)14 has produced a series of fact
sheets. These contain practical information on rules, procedures and technical possibilities in
various EU countries.

The EJN civil facilitates and supports relations between national judicial authorities through
contact points in each Member State, helping to facilitate cross-border cases. This
cooperation between authorities aims to assist persons involved in cross-border civil and
commercial cases.

In addition to EU secondary legislation, consideration should also be given to initiatives taken

by individual European states to support and expand the use of e-Justice at the national
level.

II.c Tools in the UK: You be the judge

The UK Ministry of Justice was recognized at the International Visual Communications

Awards for an interactive guide to help people understand judgments – “you be the judge.”15
This tool makes justice more accessible by familiarising people with court procedures outside
the actual courtroom.

You be the Judge is owned by the Department of Justice and is no longer available.
However, the Sentencing Council is considering the possibility of developing a revised
version.

You be the Judge is an interactive online sentencing tool that puts you in the judge’s chair.
You choose from eight real court cases, hear the facts of the case and the aggravating and
mitigating factors, and then decide on the sentence. You also get to see how your sentence
compares to the judge’s sentence in the real case. Finally, you are invited to give your
opinion on the sentencing again after the case is closed.

Justice Minister, Jeremy Wright said:

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“No two cases are the same and this can make the way criminals are punished difficult for
the public to understand. Sentencing is a complicated task and can be a very difficult job. It
has to balance a number of issues including the law, the full facts of the case, and the
aggravating and mitigating factors”

“That’s why the ‘You be the Judge’ website is so important, it gives the public a chance to be
the judge in real criminal cases, to better understand how sentencing decisions are made
and to help people see how punishments are decided”16

This tool is also important because of the information it provides. Looking at all of the choices
that users of the website made between 2010 and 2012, we find that 39% of all user
experiences resulted in the user choosing the same sentence as the judge, 16% resulted in
the user choosing a more severe sentence than the judge, and up to 45% resulted in the
user choosing a less severe sentence than the judge17. This means that users chose three
times as many less severe sentences as more severe sentences.

However, there were also some critical observations18 about this tool archived by the UK
Government. For example, while the judges, prosecutors, lawyers, legal advisors, and court
clerks depicted in the scenarios are male, female, and of different ethnic backgrounds, all of
the defendants are white, male, and under 40.

II.d Tools in England: MCOL

Money Claims Online (MCOL)19 is a successful online translation of the paper-based

process developed in England in recent decades. It consists of an online portal for initiating
simple court proceedings. It is an alternative to the traditional method of filing a civil lawsuit,
although this has also been simplified in recent years.

If a lawsuit is filed at the very last minute, an online monetary claim can buy valuable
additional time. A paper claim form sent to the court with the fee takes time to reach the
processing centre by mail. So to be safe, you should mail it before the deadline. Online
monetary claims are available 24/7, so a claim can be filed online until the twelth hour on the
last day of the statute of limitations. However, registration is required, which can slow down
the process of issuing a claim.

Other limitations influence the proper functioning of MCOL. For example, “statute of
limitations” claims generally must be brought before a court before a certain date. As a
general rule of thumb (and in all circumstances, you should seek advice on the statute of
limitations date for your particular claim), you have six years to file a lawsuit for breach of
contract or other claims.

In addition, the “Claim Details” section, which explains what the claim is about and the
amount claimed, is limited to a maximum of 24 lines of 45 characters and a total of 1080
characters. This leaves very little space indeed. This often results in short and poorly worded

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details of the claim being packed into the application. It is better to avoid this, as a lack of
detail can affect the prospects of success in court. One tool to which the MCOL is often
compared is the Possession Claim Online (PCOL20), which was developed in Wales in a
similar way to the MCOL.

II.e Tools in Wales: PCOL

The PCOL project was launched in 2006 to increase automation and make the processing of
possession claims more efficient. Often, individuals need to file a claim against another party
to settle a commercial debt, such as rent owed by tenants to a landlord. To ensure that this
payment is made, it may be necessary to write a letter to the person you may be making a
claim against, setting out all aspects of your potential claim, such as payment dates. The
letter will usually state that if payment is not made by a certain date, you will take the case to
the district court. Thanks to PCOL, individuals can file a claim against another person
through a special website. When you use Possession Claim online, you can initiate the
process at a time that is convenient for you, meaning you do not have to go to court to
initiate it. You will also be automatically assigned a hearing date in the correct court. This
avoids unwanted administrative costs incurred by filing your case in the wrong court.

The designers of Possession Claim Online have used several technological components
developed in MCOL. For example, the screen models and the payment engine are the same.
Unlike the offline process, the value of the property and the amount of the monetary claim
issued must not exceed £100,000. In fact, the online service has some restrictions similar to
the ones that apply in MCOL.

The system offers PCOL and MCOL users the possibility to use both the online and offline
procedures at any stage of possession and money claim cases. This confirms the
commitment of the Judiciary of England and Wales to optimise the accessibility of judicial
services. However, viewed from a different angle, this point creates an amazing paradox. On
the one hand, policies in the judiciary aim to make procedures faster, simpler, and less
expensive through the use of ICT capabilities. On the other hand, the incomplete
dissemination of ICT skills and the commitment to accessibility of court services limit a
complete transfer of traditional court proceedings to digital media and will continue to do so
in the future.

II.f Tools in France: e-Barreau

As in other Member States, France has taken an important step in developing a system for
the electronic filing and exchange of documents between lawyers and the ordinary courts in
the administration of justice. The system, called e-Barreau21, is intended as an electronic
equivalent to traditional procedures and as a way to do the same things more efficiently
using new electronic tools. This system transfers all traditional objects and activities into a
digital format. At the beginning, for the actors who promoted the development of the new

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system, the problems seemed to belong only to the normative and technological spheres.
Normative, since the rules of procedure were to allow and regulate the use of the new
electronic means instead of the old paper-based means (such as electronic documents and
digital signatures). Technological, as it was necessary to find or develop technologies that
were suitable to meet the normative requirements.

When Parliament passed legislation allowing the use of electronic tools that mimicked the
paper-based process, the only problem seemed to be a “technical” one. However, it soon
became apparent that nothing was as simple as it seemed. The real challenge in developing
the e-justice system was not in finding, assembling, and producing technological tools, but in
creating the governance network of relevant organizational actors needed to successfully
support and implement the innovation. The challenge was also to find ways to motivate users
to actively participate in the creation of the new service, which could not function without
them.

The possibility of making the use of e-Barreau mandatory for appellate courts has been
discussed, but this cannot be done until the system has already been legitimized and
accepted by a significant number of lawyers. At the same time, not all legitimacy problems
have been solved yet. Assuming that electronic filing will also become mandatory in the first
instance, this decision raises concerns about equal access to justice and the right to a fair
trial, as guaranteed by Article 6(1) of the European Convention on Human Rights, especially
when it comes to litigants representing themselves without a lawyer.

The current evolution of the system leads us to foresee a future with further struggles, the
search for compromises, and the creation of new governance networks that will perhaps
allow for further integration and progress in French e-justice efforts.

II.g Tools in Italy: the Online Civil Trial

Similar to the e-Barreau system in France, the “processo civile telematico”22 (which
translates to “online civil trial” in English) developed by the Italian Ministry of Justice is one of
the most important e-government projects in Italy. The main task of the system is to allow
interoperability between an enormous number of external users (such as lawyers), and the
internal users of the courts (like judges or private parties), through a highly secure
infrastructure that guarantees the reliability of transmissions, authenticity, integrity, non-
repudiation and confidentiality.

Thanks to this system, lawyers (as defendants) have online access to reliable and up-to-date
information managed in the court management system, as well as to legal acts and
documents stored in the file system. The same service is also available for applications, so
that these types of users can have their own software automatically synchronized with the
courts’ information and documents. This service makes it possible to significantly reduce
access to the courts and save time and personnel for both external users and clerks.

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Similar to their attorneys, citizens and private companies can also access the information
managed by the court management system and the legal files and documents stored in the
file system as stakeholders. In the near future, they will also be able to file legal documents
electronically with the relevant court and receive notices and decisions from the courts when
required by law.

A particular aspect of the online civil process is the introduction of a certified mail system
(PEC, acronym for “Posta Elettronica Certificata”), applicable to all public administrations and
citizens. In summary, these rules and specifications provide that postal messages receive an
official delivery confirmation in order to obtain certainty about the delivery and its exact time.
Both messages and delivery receipts are digitally signed by the sender’s provider and the
recipient’s provider to ensure authenticity, non-repudiation, and integrity.

PEC providers are authorized by the “Agenzia per l’Italia Digitale”23 (which can be translated
as “Agency for Digital Italy”), the supreme authority for ICT in Italy, which also supervises
providers to ensure compliance with the rules, particularly with regard to security.

The development of the online civil trial also required a strict integration of the different
actors and institutions at the local level: courts, software houses, lawyers and their bar
association24. The implementation of the architecture also required better integration
between the central level (the ICT department of the Ministry of Justice) and the local level
(each court system and software house). This complicated web of relationships brings into
play a number of independent organizations and technological systems. It also gives 165
local bar associations, which are neither necessarily motivated nor sufficiently wealthy, the
key role in connecting internal and external actors. In summary, in this case, as in the others
explained above, some contradictions and problems can be found with regard to a uniform
adaptation of e-justice tools at the national level.

III. Problems with e-justice

Not everyone can have access to technological developments, so it is necessary that they
coexist with traditional systems. The ECJ has confirmed that procedures that are accessible
only by “electronic means” may make it impossible for some people to exercise their rights.

For instance, in Rosalba Alassini v. Telecom Italia SpA25, the ECJ addressed four related
references for preliminary rulings from the Giudice di Pace di Ischia, which concerned
clauses under which an attempt at out-of-court settlement was a mandatory condition for the
admissibility of certain disputes before national courts. The clauses had been enacted under
the Universal Service Directive26. The ECJ examined whether these mandatory references
were compatible with the principle of effective judicial protection.

In considering this point, the ECJ also noted that the exercise of the rights conferred by the
Universal Service Directive might be impossible or excessively difficult in practice for certain
persons – in particular those without Internet access – if the dispute resolution procedure

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were accessible only by electronic means.

It is possible to identify other critical areas in the use of e-justice27. First, there is the
standardization of procedures, as there is a need to standardize procedures so that they can
be managed by the system, as also highlighted in another blog post on the Just Access
website28. There is also the issue of digitizing workflows. There is a need to adapt workflows
to the benefits and requirements of technology, which is also referred to as re-engineering. In
fact, court procedures that work well in a paper-based environment, such as serving a
document by certified mail, are pointless if the procedures are digitized. At a minimum, this
means being aware of the impact of digitization on all users and, ideally, actively involving
users in the development and deployment of the technology. An e-justice platform that is
ignored by lawyers who prefer to exchange petitions in the traditional way is worthless.

IV. Conclusion
As has been shown in the analysis of the concrete instruments of e-justice in various
European states, e-justice promotes the realization of almost all components of the right to a
fair trial, such as the fairness of the proceedings, the right to a public hearing, and a
reasonable duration of the proceedings. In particular, access to justice improves when it is
possible to file procedural documents to initiate a trial online using electronic resources, the
fairness and publicity of the trial are ensured by the possibility of broadcasting court hearings
on the Internet, and the reasonable duration of a trial is realised by reducing the time lost in
filing, transmitting, and processing evidence and by ensuring the appearance of litigants in
court.

However, the development of ICT in the field of justice seems to be more complex than
previously thought. Rapid success in the technical and even organisational areas is no
guarantee of success. In some countries, the broader normative and institutional context
plays a greater role than in others, and the exit from the experimental phase can become a
never-ending struggle. Sharing experiences and resources for the development of ICT in the
justice sector is the fundamental key to developing systems that are both technologically and
organizationally functional, but also normatively and institutionally integrated into the broader
network in which justice systems operate.

To solve the problems caused by the new introduction of e-justice, three main solutions
should be highlighted29. First, a unified and centralized software for case management and
distribution in all courts is needed. Second, the population should be gradually introduced to
this new system by providing direct support to people who have difficulties accessing justice
in this way. Finally, spreading awareness about these new tools is essential for their proper
functioning. Although national systems in many ways provide citizens with faster and easier
access to justice, these new tools are useless if citizens do not know of their existence.

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National governments should promote the new e-justice tools that are in line with our human
rights and national law in order to create a comprehensive mechanism for access to justice
for all.

1 For another constructive proposal see https://just-access.de/improving-the-online-

complaint-procedure-before-human-rights-council-special-procedures-mandate-holders/

2https://opal.latrobe.edu.au/articles/journal_contribution/Courts_in_Victoria_Australia_During
_COVID_Will_Digital_Innovation_Stick_/14913000

3 https://digital-strategy.ec.europa.eu/en

4 https://www.utrechtlawreview.org/articles/abstract/10.18352/ulr.211/

5 https://www.echr.coe.int › guide_art_6_criminal_eng

6 https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-92959%22]

7 https://e-justice.europa.eu/home?action=home&plang=en

8 https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32007R0861&from=en

9 Miguel Torres * (May 2018). Cross-Border Litigation: ‘Videotaking’ of Evidence within EU

Member States. Dispute Resolution International (IBA), 12, 71. https://advance-lexis-
com.ezp.biblio.unitn.it/api/document?collection=analytical-
materials&id=urn:contentItem:5SGN-FXN0-02NC-72V9-00000-00&context=1516831.

10 https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?
uri=CELEX:52006PC0468&from=EN

11 https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?
uri=CELEX:32015H0731(01)&from=FR

12 https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:02001R1206-
20081204&from=EN

13 https://eur-lex.europa.eu/legal-content/EN/TXT/?
uri=CELEX%3A32020R1783&qid=1644510578884

14 https://e-
justice.europa.eu/21/EN/european_judicial_network_in_civil_and_commercial_matters?
clang=en

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15 https://www.gov.uk/government/news/you-be-the-judge-wins-international-award

16 https://www.gov.uk/government/news/you-be-the-judge–2

17https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_
data/file/203006/Analysis_of_complete_You_be_the_Judge_website_experiences__web_.pd
f

18 https://www.lawgazette.co.uk/analysis/you-be-the-judge/56781.article

19 https://www.gov.uk/government/publications/money-claim-online-user-guide

20 https://www.gov.uk/possession-claim-online-recover-property

21 https://www.utrechtlawreview.org/articles/10.18352/ulr.153/

22 https://pst.giustizia.it/PST/resources/cms/documents/eJustice_in_Italy_rev_May_2016.pdf

23 https://www.agid.gov.it

24 https://link.springer.com/content/pdf/10.1007/978-94-007-7525-1.pdf

25 https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?
uri=CELEX:62008CJ0317&from=EN

26 https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?
uri=CELEX:32002L0022&from=EN

27 Reiling, D., & Contini, F. (2022). E-justice platforms: challenges for judicial governance.
International Journal for Court Administration, 13(1), 1-19. https://heinonline-
org.ezp.biblio.unitn.it/HOL/Page?
collection=journals&handle=hein.journals/ijca13&id=36&men_tab=srchresults

28https://just-access.de/improving-the-online-complaint-procedure-before-human-rights-
council-special-procedures-mandate-holders/

29 http://journals.rta.lv/index.php/ACJ/article/view/4358/4343

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